Fair Work Ombudsman v Pulis Plumbing Pty Ltd
[2019] FCCA 3192
•15 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v PULIS PLUMBING PTY LTD & ANOR | [2019] FCCA 3192 |
| Catchwords: INDUSTRIAL LAW – Penalty hearing – where the employee was hired as an apprentice – where the employer failed to register employee as an apprentice – where employer paid the employee apprenticeship wages – employer provided false or misleading documents to the Fair Work Inspector – repeat contravening conduct – where the Fair Work Ombudsman has previously investigated and litigated against the Respondent on similar factual issues. |
| Legislation: Fair Work Act 2009 (Cth), ss.44(1), 45, 90(1), 99, 117(2), 117(1), 535(4), 535(1), 550, 557, 718A Fair Work Regulations 2009 (Cth), reg.3.40 |
| Cases cited: Fair Work Ombudsman v Lohr [2018] FCA 5 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | PULIS PLUMBING PTY LTD (ACN 136 664 714) |
| Second Respondent: | MICHAEL PATRICK PULIS |
| File Number: | MLG 3280 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 19 August 2019 |
| Date of Last Submission: | 19 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 15 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tracey |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the First and Second Respondents: | Ms Bowshell |
| Solicitors for the First and Second Respondents: | Galbally & O’Bryan Lawyers |
THE COURT DECLARES THAT:
The First Respondent contravened:
(a)section 45 of the Fair Work Act 2009 (Cth) (‘the Act') by failing to pay to Mr Jordan Galea (‘Mr Galea’) the minimum ordinary hourly rate for ordinary hours worked as required by clause 20.1 of the Plumbing and Fire Sprinklers Award 2010 (Award);
(b)section 45 of the Act by failing to pay to Mr Galea the applicable overtime rate for overtime hours worked on a Monday to Friday as required by clause 33.1(a)(i) of the Award;
(c)section 45 of the Act by failing to pay to Mr Galea the applicable overtime rates for overtime hours worked on a Saturday as required by clause 33.2(a) of the Award;
(d)section 45 of the Act by failing to pay to Mr Galea the tool allowance as required by clause 21.2(a) of the Award;
(e)section 45 of the Act by failing to pay Mr Galea the meal allowance as required by clause 21.2(b) of the Award;
(f)section 45 of the Act by failing to pay to Mr Galea the fares and travel time allowances as required by clause 21.8(a) of the Award;
(g)section 44(1) of the Act by failing to pay Mr Galea the minimum ordinary hourly rate for periods of annual leave taken as required by section 90(1) of the Act;
(h)section 45 of the Act by failing to pay Mr Galea the all-purpose allowance for periods of annual leave taken as required by clause 34.2 of the Award;
(i)section 45 of the Act by failing to pay Mr Galea annual leave loading as required by clause 34.2(b) of the Award during periods of paid annual leave;
(j)section 44(1) of the Act by failing to pay Mr Galea the minimum ordinary hourly rate for periods of personal leave taken as required by section 99 of the Act;
(k)section 45 of the Act by failing to pay Mr Galea the all-purpose allowance for periods of personal leave taken as required by clause 35 of the Award;
(l)section 44(1) of the Act by failing to either provide Mr Galea with the minimum period of notice of termination, or pay amounts in lieu of that notice, as required by section 117(2) of the Act;
(m)section 45 of the Act by failing to make superannuation contributions on behalf of Mr Galea as required by clause 28.2 of the Award;
(n)section 44(1) of the Act by failing to provide Mr Galea with written notice of termination of his employment, as required by section 117(1) of the Act;
(o)section 45 of the Act by failing to pay any monies due to Mr Galea either at the time of the termination of his employment, or by electronic funds transfer into Mr Galea’s account within two working days of that termination, as required by clause 27.4 of the Award;
(p)section to 535(1) of the Act, by failing to make and keep for seven years records relating to the termination of Mr Galea’s employment, as required by regulation 3.40 of the FW Regulations; and
(q)section 535(4) of the Act by making and keeping records for the purposes of section 535(1) of the Act that were false or misleading to the First Respondent’s knowledge.
(r)section 718A of the Act by giving to a Fair Work Inspector exercising powers or performing functions under or in connection with the Act:
(i)false or misleading documents and false or misleading information in respect of attendance information relating to Mr Galea’s apprenticeship; and
(ii)false or misleading documents in respect of pay and leave entitlements of Mr Galea.
The Second Respondent contravened:
(a)section 718A of the Act by giving to a Fair Work Inspector exercising powers or performing functions under or in connection with the Act:
(i)false or misleading documents and false or misleading information in respect of attendance information relating to Mr Galea’s apprenticeship; and
(ii)false or misleading documents in respect of pay and leave entitlements of Mr Galea.
The Second Respondent was involved in each of the First Respondent’s contraventions identified in paragraphs 1(a) to 1(k) above, and 1(m) to 1(p) above, pursuant to section 550(1) of the Act
THE COURT ORDERS THAT:
Pursuant to section 546(1) of the Act that the First Respondent pay penalties in the amount of $124,000 in respect of the contraventions identified in paragraph 1 above.
Pursuant to section 546(1) of the Act that the Second Respondent pay penalties in the amount of $27,200 in respect of the contraventions identified in paragraph 2 and his involvement of the contraventions identified in 1(a) to 1(k) above, and 1(m) to 1(p) above.
Pursuant to subsection 546(3)(a) of the Act, that the penalties against the First and Second Respondents be paid to the Commonwealth within a period of 28 days of the Court’s orders.
Pursuant to section 545(1) of the Act, that for a period of two years from the date of the Court’s orders, the First Respondent and/or the Second Respondent is required to notify the Applicant in writing if they employ any person subject to an apprenticeship within 30 days of so doing.
Pursuant to section 545(1) of the Act that within a period of two months the First Respondent is to:
(a)register the Business with the Applicant's ‘My Account’ portal at and complete the profile including the Award options;
(i)provide to the Applicant its ‘My Account’ Customer Reference Number; and
(ii)register the Business with the Applicant's Online Learning Centre at and complete all education courses designed for employers.
The Applicant have liberty to apply on 7 days’ notice in the event that any of the preceding orders are not complied with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 3280 of 2018
| FAIR WORK OMBUDSMAN |
Applicant
And
| PULIS PLUMBING PTY LTD (ACN 136 664 714) |
First Respondent
| MICHAEL PATRICK PULIS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter arose by application filed by the Fair Work Ombudsman (‘FWO’) on 31 October 2018.
Prior to the matter coming before trial on 19 August 2019, the FWO, the First Respondent (‘Pulis Plumbing’) and the Second Respondent (‘Mr Pulis’) (collectively, ‘the Respondents’), entered into a Statement of Agreed Facts, dated 4 June 2019.
By this Statement of Agreed Facts, the parties agree that Pulis Plumbing contravened the Fair Work Act 2009 (Cth) (‘the Act’) and the Plumbing and Fire Sprinklers Award 2010 (‘the Award’). It was further agreed that Mr Pulis was involved in many of these contraventions pursuant to s 550 of the Act and had provided misleading or deceptive documents to a Fair Work Inspector. These agreed contraventions are set out below.
Due to the parties resolving the issue of liability, the issue for the Court is to determine the appropriate level of civil penalties.
Background
Background to the current proceeding
This matter arose by application from the FWO in relation to Pulis Plumbing’s employment of Mr Galea.
The Court was informed by the Respondents that Pulis Plumbing was a ‘modest sized plumbing business’ that employs between 2 and 9 plumbers and some other staff. Mr Pulis is the sole director and company secretary of Pulis Plumbing and was responsible for the day-to-day management, direction and control of Pulis Plumbing.
Mr Galea was 22 years old when he was employed by Pulis Plumbing between 27 July 2017 and 8 September 2017. Mr Galea was told by Pulis Plumbing that he was hired as a third year apprentice plumber.
The Respondents did not, however, arrange for the execution and lodgement of Mr Galea’s contract with the relevant authority contrary to the requirements set out in the Education and Training Reform Act 2006 (Vic).
Despite not having signed Mr Galea up to an apprenticeship, the Respondents paid Mr Galea as a third year apprentice. Mr Galea was, consequently, paid rates below his legal entitlements (that is, of a person who was not employed as a third-year apprentice and below the rates of his performed duties). The parties agree that the correct classification for Mr Galea was ‘plumbing and mechanical services worked 1(d)’ per the Award.
Mr Galea had his employment terminated without notice on or around 8 September 2017. It is not clear why, nor is it important to my determination, Mr Galea’s employment was terminated. However, it is noted as Pulis Plumbing’s conduct around the matter raises further breaches of the Act – such as Mr Galea’s entitlement to payment in lieu of notice.
Mr Galea was paid a flat rate of $16.55 per hour for all hours worked and for periods of annual leave and personal leave taken. As acknowledged in the contraventions agreed by the parties, this underpayment meant that the Respondents contravened the law in respect of, amongst other things, the minimum hourly rate and Monday to Friday and Saturday overtime rates.
As a consequence of these (and the other contraventions), it is agreed that Mr Galea was underpaid $4,035.98.
It is also agreed that Pulis Plumbing failed to pay Mr Galea any of his superannuation entitlements, which is determined at $570.86.
It is also significant that because of the Respondents’ failure to sign the relevant apprenticeship documents for Mr Galea, Mr Galea’s work for Pulis Plumbing is not credited towards his time as an apprentice.
The FWO impugn the conduct of Mr Pulis in this proceeding and Mr Pulis’ provision of false or misleading documents in response to a notice to produce from Fair Work Inspector Cameron (‘Inspector Cameron’) on 2 November 2017.
On 29 November 2017, Mr Pulis provided to Inspector Cameron – what he now admits – are false pay slips, false apprenticeship records, and a statement in a cover letter that said:
on 29 July 2017 I contacted MEGT institute of Melbourne to get [Mr Galea] signed up as an apprentice. The appointment was made for 4 August 2017 to which he failed to attend.
This statement appears to reflect the false apprenticeship records supplied by Mr Pulis that indicated that Mr Pulis made contact with the relevant apprenticeship authority one day after hiring Mr Galea (being 29 July 2017) and organised an appointment to register Mr Galea on 4 August 2017 (within the 14 day time requirement). As now admitted, Mr Pulis contacted the relevant organisation on 10 October 2017 – the day he was first notified that an investigation into his employment of Mr Galea was being commenced and two months after Mr Pulis had terminated Mr Galea’s employment.
The false payslips contained false pay records and false records of the hours Mr Galea took on paid personal leave and paid annual leave
The FWO say that Mr Pulis continued attempting to mislead Inspector Cameron when Inspector Cameron put it to Mr Pulis that she had discovered falsities in his records. Inspector Cameron deposes that Mr Pulis stated that he had ‘booked the appointment with [the relevant apprenticeship authority] but [Mr Galea] was sick that day’ and that, in reference to the pay records, ‘that there must be some kind of mistake’.[1]
[1] Cameron affidavit at [28] and JRC-1’ at Tab 16.
Background to the previous proceeding
It is significant that the Respondents have been the subject of a similar proceeding which was launched by the FWO on 22 August 2016. Judgment was delivered in that matter on 8 December 2017 by his Honour Judge Riethmuller: Fair Work Ombudsman v Pulis Plumbing Pty Ltd & Anor [2017] FCCA 3013.
The subject matter of that litigation is startlingly similar: it involved the Respondents hiring a young man as a second-year apprentice, failing to complete the registration requirements and paying him the diminished wages entitled to an apprentice.
Judge Riethmuller in his Judgment stated:
15. The conduct of the respondents in this case was an outrageous exploitation of a young person. The conduct is worse than simply underpaying an employee who has had difficulty obtaining work elsewhere, as the respondents also held out the lure of an apprenticeship to this young man: a particularly significant career and life goal for a young person who is not academically inclined. The amount of the underpayment, in comparison to the payments actually made, is significant.
16. After the Fair Work Ombudsman’s Office (“the FWO”) became involved, the respondents ultimately rectified the underpayments, which is a factor that must weigh heavily in their favour.
17. There is no apology or statement of regret in this case, despite the egregious nature of the conduct in this case. The lack of acknowledgement and real regret for the conduct weighs against the respondents.
Judge Riethmuller imposed penalties of $100,000 for Pulis Plumbing and $21,500 for Mr Pulis.
It may be the case that this is not the typical form of ‘repeat offending’ as the current offending conduct occurred prior to the judgment of the previous offending conduct. However, the FWO does note that the Respondents should have understood the gravity of their offending conduct as the Respondents were actively engaged and represented in the matter before Judge Riethmuller. These contraventions in the current matter also occurred after the Respondents had entered into a statement of agreed facts in the previous matter.
Agreed contraventions
The declarations the parties agree to are found at [115]-[117] of the Statement of Agreed Facts:
115. Declarations that the First Respondent contravened the following civil remedy provisions:
(a) section 45 of the FW Act by failing to pay to Mr Galea the minimum ordinary hourly rate for ordinary hours worked as required by clause 20.1 of the Award;
(b) section 45 of the FW Act by failing to pay to Mr Galea the applicable overtime rate for overtime hours worked on a Monday to Friday as required by clause 33.1 (a)(i) of the Award;
(c) section 45 of the FW Act by failing to pay to Mr Galea the applicable overtime rates or overtime hours worked on a Saturday as required by clause 33.2(a) of the Award;
(d) section 45 of the FW Act by failing to pay to Mr Galea the tool allowance as required by clause 21.2(a) of the Award;
(e) section 45 of the FW Act by failing to pay Mr Galea the meal allowance as required by clause 21.2(b) of the Award;
(f) section 45 of the FW Act by failing to pay to Mr Galea the fares and travel time allowances as required by clause 21.8(a) of the Award;
(g) section 44(1) of the FW Act by failing to pay Mr Galea the minimum ordinary hourly rate for periods of annual leave taken as required by section 90(1) of the FW Act;
(h) section 45 of the FW Act by failing to pay Mr Galea the all-purpose allowance for periods of annual leave taken as required by clause 34.2 of the Award;
(i) section 45 of the FW Act by failing to pay Mr Galea annual leave loading as required by clause 34.2(b) of the Award during periods of paid annual leave;
0) section 44(1) of the FW Act by failing to pay Mr Galea the minimum ordinary hourly rate for periods of personal leave taken as required by section 99 of the FW Act;
(k) section 45 of the FW Act by failing to pay Mr Galea the all-purpose allowance for periods of personal leave taken as required by clause 35 of the Award;
(1) section 44(1) of the FW Act by failing to either provide Mr Galea with the minimum period of notice of termination, or pay amounts in lieu of that notice, as required by section 117 (2) of the FW Act;
(m) section 45 of the FW Act by failing to make superannuation contributions on behalf of Mr Galea as required by clause 28.2 of the Award;
(n) section 44(1) of the FW Act by failing to provide Mr Galea with written notice of termination of his employment, as required by section 117(1) of the FW Act;
(o) section 45 of the FW Act by failing to pay any monies due to Mr Galea either at the time of the termination of his employment, or by electronic funds transfer into Mr Galea's account within two working days of that termination, as required by clause 27.4 of the Award;
(p) section to 535(1) of the FW Act, by failing to make and keep for seven years records relating to the termination of Mr Galea's employment, as required by regulation 3.40 of the FW Regulations; and
(q) section 535(4) of the FW Act by making and keeping records for the purposes of section 535(1) of the FW Act that were false or misleading to the First Respondent's knowledge.
116. A declaration that the First Respondent and the Second Respondent each contravened section 718A of the FW Act by giving to a Fair Work Inspector exercising powers or performing functions under or in connection with the FW Act:
(a) false or misleading documents and false or misleading information in respect of attendance information relating to Mr Galea's apprenticeship; and
(b) false or misleading documents in respect of pay and leave entitlements of Mr Galea.
117. A declaration that the Second Respondent was involved, pursuant to section 550 of the FW Act, in the contraventions committed by the First Respondent set out in paragraphs 115(a) to 115(1) above, and 115(n) to 115(q) above.
Orders sought
Orders sought by the FWO
The FWO seeks penalties in the range of:
a)(a) $209,916 to $265,608 for Pulis Plumbing; and
b)(b) $49,266 to $62,118 for Mr Pulis.
This reflects the FWO’s ‘grouping’ of the following contraventions per s 557(1) of the Act:
(a) minimum ordinary hourly rate of pay;
(b) overtime rates for overtime hours worked on a Monday to Friday;
(c) overtime rates for overtime hours worked on a Saturday; and
(d) tool, meal and travel and fare allowances.
The FWO says that s 557 of the Act does not allow grouping of separate provisions of a modern Award. The FWO relies on Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62 at [11]-[18] and Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 at [283] – [284] for this proposition.
The FWO does ‘group’ the two contraventions of s 535(4) of the Act (being knowingly making and keeping false and misleading records) as a single contravention.
The FWO further reduces the contraventions on which penalties should attach under the ‘course of conduct’ principle. The FWO accepts that the separate contraventions in relation to annual leave be grouped, and for the same to occur for the separate contraventions in relation to personal leave. This is set out in Annexure A of the Applicant’s submissions filed 23 July 2019.
The FWO says, then, that there are:
(a) sixteen contraventions against Pulis Plumbing; and
(b) fifteen contraventions against Mr Pulis.
The FWO reiterate much of what is outlined in the background in support of the penalties the FWO seeks: noting that Mr Galea was young and vulnerable, expected to be paid less in reliance on being hired as an apprentice, and should have been paid his superannuation entitlements. The FWO further note that Mr Pulis’ actions were deliberate: Mr Pulis was aware that he needed to sign Mr Galea up as an apprentice, Mr Pulis had received unequivocal advice from the Fair Work Infoline that if he hired someone who was not signed up as an apprentice he needed to pay that person labourer rates and that Mr Pulis actively sought to mislead the FWO by providing false or misleading documents.
The FWO also say that despite the underpayment not being of a larger size seen in this Court, the underpayments occurred in a brief time and that the time he spent working for Pulis Plumbing will not count towards the completion of his apprenticeship.
The FWO further submit that the failure to comply with minimum standards is an important consideration, as is the need for general and specific deterrence.
Lastly, the FWO say that a discount on penalties does not automatically follow where the Respondents have entered into a Statement of Agreed Facts or rectified the underpayments. The FWO say that the Court should consider the context of the actions. Here, the underpayments were rectified after an attempt by the Respondents to mislead the FWO, occurred a year after the employment period finished and only occurred after the FWO became involved.
The FWO does allow for a 15% discount for entering into the Statement of Agreed Facts; but notes that it was entered into after deliberate attempts to mislead the FWO.
Orders sought by the Respondents
The Respondents say that the following penalties are appropriate:
a)$93,673 for Pulis Plumbing; and
b)$17,506 for Mr Pulis.
The Respondents say this is appropriate as contraventions 1 to 6 (being underpayment of Award rates and allowances) as outlined in Annexure A of the FWO’s submissions should be grouped. The Respondents also seek that items 12 and 13 (the failure to provide notice of termination or payment in lieu thereof and the failure to provide written notice of termination) should be grouped. The Respondents otherwise accept the FWO’s grouping.
The Respondents say that a discount of 25% with respect to Pulis Plumbing and 15% with respect to Mr Pulis is appropriate due to their contrition, cooperation and corrective action. The Respondents attach to their submissions certificates of completion of training completed by Mr Pulis from the Victorian Chamber of Commerce and Industry, newly developed policies for the hiring new staff and employment procedures for Pulis Plumbing, and a letter of apology from Mr Pulis to Mr Galea.
The Respondents also say that the offending conduct was not deliberate, rather, ‘the conduct was the result of a lack of attentiveness to their obligations under industrial laws’.[2]
[2] Respondent’s submissions, filed 14 August 2019, [15].
It is further said that the Respondents are not true ‘repeat offenders’ as the judgment had not been released prior to this offending. The Respondents say that ‘it is submitted that the Respondents had not at that time apprehended the gravity of the contravening conduct’.[3] It is then said that specific deterrence is less important as, since the judgment was delivered, the Respondents have understood the seriousness of their offending.
[3] Respondent’s submissions, filed 14 August 2019, [18].
The Respondents also say that general deterrence is one factor amongst many, and penalties still need to be proportionate to the gravity of the offence.
The Respondents say that there should be a 35% reduction for both Respondents ‘to ensure that despite the seriousness of the contravening conduct, the penalties are not oppressive or crushing’.[4]
[4] Respondent’s submissions, filed 14 August 2019, [28].
Consideration
In setting a penalty in this case, I have regard to the matters set out in Kelly v Fitzpatrick [2007] FCA 1080 which are to be considered when fixing an appropriate penalty.
A feature of this case is the failure on the part of the Respondents to put any evidence before the Court in relation to the size and financial circumstances and the business which might go to mitigation.
There is no evidence of the financial position of either of the Respondents other than information referred to by the FWO. Given that the Respondents are represented by Counsel and a firm of solicitors who are very experienced in preparing matters for plea hearings, whether in the criminal or civil context, I take it that the failure to place evidence before the Court is a deliberate forensic decision. I will not increase the penalty that might be given because of this, but on the other hand, there is no basis to reduce the penalty on the basis of incapacity to pay any penalty ordered. The FWO refers to evidence that Mr Pulis owns at least seven properties in the state of Victoria, one of which, being the address 9 Pecks Road. Sydenham, was purchased for $850,000. That information is current as at March 2019. The Respondents say the properties are encumbered but no evidence has been put before the Court which would establish the net value of the properties. I know nothing of Mr Pulis’ personal circumstances, whether he has dependents and if so, how they may be affected by any order that I make.
In relation to the circumstances of the business, the Respondents submit that Pulis Plumbing conducts a modest sized plumbing business in the Melbourne suburbs, employing from time to time, between two and approximately nine plumbers, together with other staff.
The Respondents have engaged in deliberate conduct in failing to sign Mr Galea up to a training contract and by underpaying him. I do not accept that the Respondents’ conduct arose as a result of misunderstanding industrial laws or regulations surrounding the engagement of apprentices or inattentiveness. Mr Pulis was actively engaged in litigation on the same subject matter at the time when this contravention occurred and must have been aware of the company’s obligations and deliberately chose not to observe them. The conduct of the Respondents is deliberate and exploitative. It is conduct that undermines the apprenticeship scheme and it affects the employee beyond the fact of underpaying entitlements. The provision of the false records to the FWO were a deliberate and dishonest act.
I accept that the Respondents have provided evidence of steps taken to engage in training in order to improve workplace practices and that staff of the business have been directed to develop and follow procedures for the hiring of staff, including apprentices. I also note that the Respondents have admitted the contraventions and have apologised to Mr Galea. Whilst cooperation is an important factor, given that this is a repetition of conduct that was previously engaged in, I do not believe that the penalty should be significantly discounted on this basis.
This is a case where specific and general deterrence are particularly important considerations. A penalty must be fixed which acts as a specific deterrent to ensure that the Respondents do not engage in this type of conduct in the future. I will not impose a penalty which proceeds on the basis that the Respondents had been penalised previously at the time of the contravening conduct occurring. However, there should be some consideration given in the penalty to the fact that the Respondents have engaged in similar conduct and on this occasion engaged in the conduct at the time when it was being investigated for similar conduct.
I adopt the approach to grouping endorsed by the Full Court in Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62 and note Bromwich J’s judgment in Fair Work Ombudsman v Lohr [2018] FCA 5 that the payment of a flat rate of pay does not mean that there has not been a multiplicity of breaches. I will fix a penalty for each contravention and then look at the total penalty to see whether that penalty is excessive and adjust such penalty if it is excessive.
The penalties that will attach to each contravention is set out in Annexure A, below. In summary, the total of these penalties are:
Amount to be paid
Pulis Plumbing
$124,000
Mr Pulis
$27,200
I otherwise make orders in the terms proposed by the FWO, except for order 7 as the Respondents have provided evidence that Mr Galea has been back-paid his superannuation entitlements.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 15 November 2019
Annexure A
| Contravention | Proposed Grouping | Maximum Penalty sought by the FWO | Penalty Amount sought by the FWO | The Amount to be paid | ||||
| Pulis Plumbing | Mr Pulis | Pulis Plumbing | Mr Pulis | Pulis Plumbing | Mr Pulis | |||
| 1 | Section 45 of the Act, failing to pay the minimum ordinary hourly rate as required by clause 20.1 of the Award | Minimum ordinary hourly rate | $63,000 | $12,600 | $26,775 $32,130 | $5,355- $6,426 | $5,000 | $2,000 |
| 2 | Section 45 of the Act by failing to pay the applicable overtime rates for overtime hours worked on a Monday to Friday as required by clause 33.1(a)(i) of the Award | 2. Overtime - Monday to Friday | $63,000 | $12,600 | $21,420-$26,775 | $4,284- $5,355 | $5,000 | $2,000 |
| 3 | Section 45 of the Act by failing to pay the applicable overtime rates for overtime hours worked on a Saturday as required by clause 33.2(a) of the Award | 3. Overtime - Saturday | $63,000 | $12,600 | $26,775-$32,130 | $5,355-$6,426 | $5,000 | $2,000 |
| 4 | Section 45 of the Act by failing to pay the tool allowance as required by clause 21.2(a) of the Award | 4. Tool Allowance | $63,000 | $12,600 | $5,355-$5,355 | $1,071-$2,142 | $1,500 | $1,000 |
| 5 | Section 45 of the Act by failing to pay the meal allowance as required by clause 21.2(b) of the Award | 5. Meal allowance | $63,000 | $12,600 | $5,355-$5,355 | $1,071 | $1,000 | $1,000 |
| 6 | Section 45 of the Act by failing to pay the fares and travel time allowances as required by clause 21.8(a) of the Award | 6. Fares and Travel time allowances | $63,000 | $12,600 | $5,355-$10,710 | $1,071-$2,142 | $5,000 | $1,000 |
| 7 | Section 44(1) of the Act by failing to pay the minimum ordinary hourly rate for periods of annual leave taken as required by section 90(1) of the Act | 7. Annual leave entitlements for period of annual leave taken | $63,000 | $12,600 | $5,355-$10,710 | $1,071-$2,142 | $5,000 | $1,000 |
| 8 | Section 45 of the Act by failing to pay the all-purpose allowance for periods of annual leave taken as required by clause 34.2 of the Award | |||||||
| 9 | Section 45 of the Act by failing to pay annual leave loading as required by clause 34.2(b) of the Award during periods of paid annual leave | |||||||
| 10 | Section 44(1) of the Act by failing to pay the minimum ordinary hourly rate for periods of personal leave taken as required by section 99 of the Act | 8. Personal leave entitlements for period of personal leave taken | $63,000 | $12,600 | $5,355-$10,710 | $1,071-$2,142 | $5,000 | $1,000 |
| 11 | Section 45 of the Act by failing to pay the all-purpose allowance for periods of personal leave taken as required by clause 35 of the Award | |||||||
| 12 | Section 44(1) of the Act by failing to either provide the minimum period of notice of termination, or pay amounts in lieu of the notice, as required by section 117(2) of the Act | 9. Failing to pay terminated employee in lieu of notice | $63,000 | $12,600 | $13,388-$16,065 | $2,678-$3213 | $2,000 | $1,000 |
| 103 | Section 44(1) of the Act by failing to provide written notice of termination of employment, as required by section 117(1) of the Act | 10. Failing to provide written notice of termination. | $63,000 | $12,600 | $8,0333-$10,710 | $1,607-$2,142 | $1,500 | $200 |
| 14 | Section 45 of the Act by failing to make superannuation contributions on behalf of the employee as required by clause 28.2 of the Award | 11. Superannuation | $63,000 | N/A | $16,065-$21,420 | N/A | $16,000 | $1,000 |
| 15 | Section 45 of the Act by failing to pay any monies due to the employee either at the time of the termination of his employment, or by electronic funds transfer into the employee’s account within two working days of that termination, as required by clause 27.4 of the Award | 12. Failing to make final pay to employee after termination | $63,000 | $12,600 | $16,065-$21,420 | $3,213-$4,284 | $16,000 | $1,000 |
| 16 | Section 535(1) of the Act by failing to make and keep for seven years records of relating to the termination of the employee’s employment, as required by regulation 3.40 of the FW Regulations | 13. Failing to make/keep records of termination | $63,000 | $12,600 | $10,710-$16,065 | $2,142-$3,213 | $11,000 | $2,000 |
| 17 | Section 535(4) of the Act by making and keeping records for the purposes of section 535(1) of the Act knowing that they were false or misleading to the First Respondent’s knowledge | 14. Making & keeping false or misleading records | $63,000 | $12,600 | $32,130-$37,485 | $6,426-$7,497 | $15,000 | $6,000 |
| 18 | Section 535(4) of the Act by making and keeping records for the purposes of section 535(1) of the Act knowing that they were false or misleading to the First Respondent’s knowledge | |||||||
| 19 | Section 718A(1)(a) of the Act by giving to a Fair Work Inspector exercising powers or performing functions under, or in connection with, the Act false or misleading documents and false or misleading information in respect of attendance information relating to the employee’s apprenticeship | 15. Providing false/misleading records relating to apprentices hip | $63,000 | $12,600 | $32,130-$37,485 | $6,426-$7,497 | $15,000 | $2,500 |
| 20 | Section 718A(1)(a) of the Act by giving to a Fair Work Inspector exercising powers or performing functions under, or in connection with, the Act false or misleading documents in respect of pay and leave entitlements of Mr Galea First and Second Respondent Primary contraveners. | 16. Providing false/misleading records relating to pay and leave entitlements | $63,000 | $12,600 | $32,130-$37,485 | $6,426-$7,497 | $15,000 | $2,500 |
| Total | $1,008,000 | $189,000 | $262,395-$332,010 | $49,266-$62,118 | $124,000 | $27,200 | ||
| With a 20% totality reduction for the First Respondent | $209,916-$265,608 | |||||||
5
3